1. Term. This Agreement shall remain in effect until terminated pursuant to the terms and conditions set forth in this Agreement.
2. License Grant. (a) AOL grants to Licensee, subject to these terms and conditions, a nonexclusive, royalty-free, worldwide, and nontransferable right to (i) reproduce, without change, the version and platform of the Winamp and/or Spinner client software to which these terms are attached ("Products") in executable form only on any media and (ii) distribute by sublicense such Product copies to end users, directly or indirectly through distributors and sub-distributors. Licensee may electronically distribute the Products, in exportable version only, pursuant to the terms and conditions set forth herein.
(b) Except as expressly permitted herein or by applicable law, Licensee shall not, and shall not permit any distributor or other person to, re-configure, modify, translate, decompile, reverse engineer, disassemble, or otherwise determine or attempt to determine source code from the Product or to create any derivative works based upon the Products. If Licensee or any distributor fails to comply with this Section 2(b), AOL may immediately (in addition to all other remedies it may have and except for end user licenses) revoke all licenses granted hereunder.
(c) Licensee shall use, and is granted during the term hereof a nontransferable, nonexclusive and restricted license (with a right to sublicense to distributors) to use the marks "Spinner.com" name and logo; "Winamp" name and logo; "SHOUTcast" name and logo (collectively, the "Marks") solely on the appropriate Products and on the packaging containing the appropriate Products and in related advertising, marketing and technical material on Licensee's internet site.
3. Use of the Marks; Protection of the Marks. (a) Proper Use. Licensee agrees that all use of the Marks shall be only in connection with this Agreement and shall comply with AOL's then current signature guidelines. Licensee agrees not to use or combine any other trademark or service mark with the Marks. Licensee further agrees not to use the Marks on or in connection with any products or services that are or could be deemed by AOL in its reasonable judgment, to be obscene, pornographic, disparaging of AOL or its products, or otherwise in poor taste, or that are themselves unlawful or whose purpose is to encourage unlawful activities by others. All use of the Marks shall inure to AOL's benefit.
(b) Monitoring by AOL. Upon AOL's request, Licensee shall promptly provide AOL with samples of any Product or documentation bearing the Marks. If AOL determines that Licensee is using the Marks improperly, Licensee shall have ten (10) days to remedy the improper use.
4. Reports. Licensee shall report to AOL within 30 calendar days after the end of each calendar quarter the quantity of Product licenses granted during such prior quarter for distribution hereunder, by country therefor. Such reports shall be provided in written or electronic form to AOL.
5. Support. The Product comes with no support from AOL.
6. Distribution. (a) Licensee shall, and shall cause its distributors to comply with all then-current applicable laws, regulations and other legal requirements in its performance of this Agreement, including without limitation, all applicable export laws, rules and regulations of any agency of the U.S. Government or other applicable agencies. Licensee shall ensure the compliance with all applicable laws, rules and regulations to preclude the acquisition of unlimited rights in the Product to a governmental agency.
(b) Licensee shall ensure that its distributors and sub-distributors comply with all of the relevant terms contained in this Agreement. Each Product distributed pursuant to this Agreement must be distributed with the end-user license agreement that is provided with such Product.
(c) This is a nonexclusive relationship, and each party agrees that the other may enter into similar arrangements with third parties. Licensee shall and shall cause its distributors to treat the Product at least as favorably as it treats any competitive products it distributes.
7. Proprietary Rights. Title to and ownership of all copies of the Products, including all copyrights thereto, whether in machine-readable or printed form, and including without limitation derivative works, compilations, or collective works thereof and all related technical know-how and all rights therein are and shall remain the exclusive property of AOL or its suppliers. Licensee acknowledges that AOL is the owner of the Marks, and any trademark applications and/or registrations thereto, agrees that it will do nothing inconsistent with such ownership and agrees that all use of the Marks by Licensee shall inure to the benefit of AOL. AOL agrees that nothing in this Agreement shall give Licensee any right, title or interest in the Marks other than the right to use the Marks in accordance with this Agreement. Except for the rights expressly granted to Licensee hereunder, AOL reserves for itself all other rights in and to the Products. Licensee and its distributors shall not take any action to jeopardize, limit or interfere in any manner with AOL's ownership of or rights with respect to the Products or the Marks. Further, Licensee or its distributors shall not remove or alter any trademark, copyright or other proprietary notices, legends, symbols, or labels appearing on any Product delivered to Licensee and Licensee shall reproduce such notices on all copies of the Product made hereunder.
8. No Warranty/ As Is. THE PRODUCTS SUBJECT TO THIS AGREEMENT DO NOT COME WITH SUPPORT OF ANY KIND AND ARE PROVIDED TO LICENSEE "AS IS" AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND. AOL EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, NON- INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
9. Indemnity. AOL shall have no obligation or liability for, and Licensee shall defend, indemnify and hold AOL harmless from and against any claim (including reasonable attorneys' fees and costs) arising from Licensee's distribution of the Products under, and/or compliance with the terms and conditions set forth in, this Agreement.
10. Limitation of Liability. (a) TO THE EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL AOL OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE OR DATA, INTERRUPTION OF BUSINESS, OR FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF AOL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. (b) IN NO EVENT WILL AOL OR ITS SUPPLIERS BE LIABLE FOR ANY CLAIM AGAINST LICENSEE BY ANY THIRD PARTY. (c) IN NO EVENT SHALL AOL OR ITS SUPPLIERS BE LIABLE FOR (I) ANY REPRESENTATION OR WARRANTY MADE TO ANY THIRD PARTY BY LICENSEE, ANY DISTRIBUTOR OR THEIR RESPECTIVE AGENTS; (II) FAILURE OF THE PRODUCTS TO PERFORM; (III) FAILURE OF THE PRODUCTS TO PROVIDE SECURITY; OR (IV) THE RESULTS OR INFORMATION OBTAINED OR DECISIONS MADE BY END USERS OF THE PRODUCTS OR THE DOCUMENTATION. THIS LIMITATION OF LIABILITY IS AN ESSENTIAL PART OF THE BARGAIN UNDER THIS AGREEMENT.
11. Termination. This Agreement may be terminated: (a) immediately by AOL in the event Licensee or a distributor of Licensee attempts to derive the source code of the Product; (b) by either party upon 60 days' prior written notice to the other party; or (c) immediately by AOL in the event Licensee fails to remedy a breach of Section 3(b) of this Agreement within the specified cure period. Immediately upon termination or expiration hereof, all licenses for the Products granted hereunder (except for validly granted end user licenses) shall terminate, and Licensee shall deliver to AOL or destroy all copies of the Products in its possession or control, and shall furnish to AOL an affidavit signed by an officer of Licensee certifying such delivery or destruction. Termination by either party shall not act as a waiver or release of any breach hereof or any liability hereunder. Sections 2(b), 6(a), 7, 8, 9, 10, 11, 12 and 13 shall survive any expiration or termination of this Agreement
12. Notice. Any notice required or permitted hereunder shall be in English, in writing and shall be deemed to be properly given upon receipt. Notices to AOL shall be to the attention of the Legal Department, AOL 22000 AOL Way, Dulles, Virginia 20166-9323.
13. Miscellaneous. (a) Neither party's waiver of a breach or delay or omission to exercise any right or remedy shall be construed as a waiver of any subsequent breach or as a waiver of such right or remedy. (b) This Agreement shall be governed by and construed under the laws of the Commonwealth of Virginia, U.S.A., without reference to its conflicts of law provisions. (c) Unless otherwise agreed in writing, all disputes relating to this Agreement (except any dispute relating to intellectual property rights) shall be subject to final and binding arbitration in Virginia under the auspices of the American Arbitration Association (AAA), with the losing party bearing all costs of such arbitration. Notwithstanding the foregoing, AOL reserves the right to invoke the jurisdiction of any competent court to remedy or prevent violation of any provision under this Agreement relating to AOL Confidential Information. (d) This Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods. (e) This Agreement creates no agency, partnership, joint venture, or employment relationship and neither Licensee nor its agents have any authority to bind AOL in any respect whatsoever. (f) If the application of any provision hereof to any particular facts shall be held to be unenforceable by any competent court, then (x) the enforceability of such provision as applied to any other facts and the validity of other provisions hereof shall not be affected and (y) such provision shall be reformed without further action by the parties hereto only to the extent necessary to make such provision valid and enforceable when applied to the particular facts. (g) This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior and contemporaneous agreements, and communications, whether oral or written, between the parties relating to the subject matter of this Agreement and all past courses of dealing or industry custom. (h) If Licensee has an effective agreement with AOL ("Prior Agreement") covering only the distribution of the Product set forth herein, then this Agreement shall supersede the Prior Agreement. If any Prior Agreement allows for distribution of any AOL products in addition to the Product, for example AOL server products, then this Agreement shall supersede only those portions of the Prior Agreement that relate to the distribution of such Product. (i) This Agreement is written in the English language only, which language shall be controlling in all respects. (j) AOL may use Licensee's name in a list of customer references or in any press release issued by AOL regarding the licensing of the Product and/or provide Licensee's name and the names of the Product licensed by Licensee to third parties.